In Poland, the Constitutional Tribunal as described in the Constitution of the Republic of Poland no longer exists. The body operating in the building at Szucha Avenue became a tool in the hands of the political authorities to solve their problems. This is confirmed by subsequent decisions of the Tribunal under the presidency of Julia Przyłębska.
Below, we present a selection of the Tribunal’s “rulings” that redefine the understanding of law that has become established in democratic countries where the rule of law is respected. The attack on the rule of law, which is systematically carried out by the ruling majority is, among others, executed through the judgments of the dummy Constitutional Tribunal of Julia Przyłębska, which has become a machine for solving problems of the PiS government.
Problem?
The amendment to the law on assemblies passed by PiS introducing new, privileged cyclical assemblies for organising, among others, the Smolensk monthly meetings, has been widely criticised and assessed as a restriction of the constitutional freedom of assembly.
The President files a motion with the Constitutional Tribunal.
On 16 March 2017, the Constitutional Tribunal held that the new rules privileging cyclic assemblies are constitutional.
Problem?
The individual term of office of members of the National Council of the Judiciary has stood in the way of the completion of Zbigniew Ziobro’s reform of the judiciary.
Ziobro submits a motion to the Constitutional Tribunal.
On 20 June 2017, the Constitutional Tribunal finds, among other things, that the provision of the Act on the NCJ regarding the term of office of members of the NCJ elected from among judges of the ordinary courts, understood in such a way that the term of office is individual, is unconstitutional.
Problem?
The President exercised the right of clemency with respect to Mariusz Kamiński, the former head of the Anti-Corruption Bureau and a PiS activist convicted in a non-final judgment for overstepping his rights.
The Supreme Court issued a resolution in which it held that the President may only pardon people who have been validly convicted, while the application of the right of clemency before the date of validity of the judgment has no procedural effect.
The Marshal of the Sejm refers a motion to the Constitutional Tribunal to settle a competence dispute and the Prosecutor General files a motion with the Constitutional Tribunal regarding the regulations enabling the Supreme Court to examine this matter.
The Constitutional Tribunal initiated proceedings on the competence dispute, as a result of which the Supreme Court had to suspend the proceedings in Mariusz Kamiński’s case on 1 August 2017. The Constitutional Tribunal has not examined the case to this day; the proceedings have been suspended for over 4 years.
In response to the Prosecutor General’s motion, on 17 July 2018, the Constitutional Tribunal held that the President had the right to pardon Mariusz Kamiński even before the court’s final judgment.
Problem?
The constitutionality of the new National Council of the Judiciary, elected in whole by the Sejm of the Republic of Poland, and the expiry of the term of office of the NCJ to date is challenged.
The candidates to the Supreme Court appeal against the resolutions of the NCJ questioning its independence and the Supreme Administrative Court suspends the implementation of the resolutions of the neo-NCJ
The neo-NCJ files a motion with the Constitutional Tribunal.
On 25 March 2019, the Constitutional Tribunal concludes that the new rules for electing judges to the NCJ are constitutional. It simultaneously declares the provision allowing for the possibility to file appeals against resolutions of the NCJ in recruitments with the Supreme Court to be unconstitutional.
Problem?
The parties to the proceedings file motions with the ordinary courts and the Supreme Court to remove the judges appointed to the office of judge with the participation of the neo-NCJ because of raising the circumstances of the defectiveness of their appointment.
Neo-judges from the Civil Chamber of the Supreme Court refer a question to the Constitutional Tribunal.
The Constitutional Tribunal declared a provision of the Civil Procedures Code allowing motions for exclusion to be filed if a party refers in the motion to the defectiveness of the appointment of a judge by the Polish President on the motion of the neo-NCJ to be unconstitutional on 2 June 2020.
Problem?
Poland’s strict regulations on the termination of pregnancy allow abortions to be conducted in cases where a severe foetal defect or an incurable life-threatening disease has been established.
A group of MPs file a motion to the Constitutional Tribunal.
On 22 October 2020, the Constitutional Tribunal declared the premise of abortion in the case of a severe foetal defect or an incurable life-threatening disease unconstitutional.
Problem?
The First President of the Supreme Court requests that the membership of the three combined Chambers, namely the Civil, Criminal and Labour and Social Insurance Chambers of the Supreme Court pass a resolution regarding, among other things, the correctness of the composition of the courts with the participation of people nominated with the involvement of the neo-NCJ.
The Marshal of the Sejm refers a motion to the Constitutional Tribunal to settle a competence dispute.
The Constitutional Tribunal first unsuccessfully attempts to block the adoption of the resolution on 22 January 2020 by requesting the First President of the Supreme Court to suspend the proceedings.
Then, after the Supreme Court passes a resolution which is unfavourable for the authorities, it suspends the application of that resolution on 28 January 2020.
Problem?
The Supreme Court, in the membership of the combined Chambers, namely the Civil, Criminal and Labour and Social Insurance Chambers, issues a resolution (BSA I-4110-1/20) on 23 January 2020, from which it arises, among other things, that the Supreme Court, ordinary courts and military courts are incorrectly staffed when their membership includes a person selected by the neo-NCJ, although this entails various consequences depending on the level of the court and the date of the decision.
The Polish Prime Minister submits a request to the Constitutional Tribunal to examine the constitutionality of this resolution.
On 20 April 2020, the Constitutional Tribunal finds that the resolution of the three Chambers of the Supreme Court of 23 January 2020 is incompatible with the Constitution of the Republic of Poland, the EU Treaty and the European Convention on Human Rights.
Problem?
PiS is unable to elect a new Ombudsman, so, after the expiry of the term of office, the duties of the Ombudsman continue to be performed by Adam Bodnar, the Ombudsman to date, who repeatedly intervened in the cases of citizens whose rights had been breached.
A group of PiS MPs files a motion with the Constitutional Tribunal regarding the continuation of the Ombudsman’s term of office.
On 15 April 2021, the Constitutional Tribunal declared the provision enabling the Ombudsman to operate after the end of his term of office until his successor takes office unconstitutional.
Problem?
The Court of Justice of the European Union orders interim measures against Poland by which it suspends, among other things, the application of provisions granting the Disciplinary Chamber operating at the Supreme Court the competence to hear disciplinary cases of judges.
The Disciplinary Chamber refers questions to the Constitutional Tribunal on the effectiveness of the CJEU’s interim measures.
On 14 July 2021, the Constitutional Tribunal concludes that the obligation to implement the interim measures related to the shape of the structure and functioning of the constitutional bodies of judicial authority is inconsistent with the Constitution of the Republic of Poland and in this respect is not covered by the principles of primacy and direct application.
Problem?
The CJEU issues a judgment in which it allows national laws to be disregarded and EU law to be applied when assessing the correctness of court nomination procedures and, if a gross breach of the law is found to have taken place in the course of such a procedure, the acknowledgement that the court formed in such a way is not independent and impartial.
The Prime Minister of the Republic of Poland refers a motion to the Constitutional Tribunal to examine the constitutionality of certain provisions of the Treaty on European Union.
On 7 October 2021, the Constitutional Tribunal declared selected provisions of the EU Treaty unconstitutional, contests the principle of loyal cooperation and the principle of primacy of EU law over national law, which leads to the prevention of Polish courts from applying the interpretation of EU law established by the Court of Justice of the EU.
Problem?
The European Court of Human Rights ruled that the decision of the Constitutional Tribunal with the participation of a person elected to a position that was already occupied in the Constitutional Tribunal (a stand-in judge) is in breach of the ECHR, while the body with the participation of such a person does not meet the requirement of a ‘court established by law’ as set out in Article 6 of the Convention.
The Prosecutor General files a request with the Constitutional Tribunal on the constitutionality of a selected provision of the ECHR.
On 24 November 2021, the Constitutional Tribunal declares the provision of the ECHR, which guarantees everyone the right to a fair trial, is inconsistent with the Polish Constitution as regards proceedings before the Constitutional Tribunal.